|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 5 January 2004
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL DIVISION DIVISION |
) | |
|
|
Re |
G and M NICHOLAS PTY LTD t/as MEDTEST PATHOLOGY SERVICES |
|
|
And |
MEDICARE PARTICIPATION REVIEW COMMITTEE |
|
|
And |
HEALTH INSURANCE COMMISSION |
Joined Party
Tribunal |
Justice Garry Downes, President |
Date 23 December 2003
Decision
...............................................
CATCHWORDS
HEALTH - medicare benefit - accredited pathology laboratory - assessment by National Association of Testing Authorities (NATA) - Tribunal refused to direct applicant to permit assessment visit - assessment visit sought pursuant to applicant's approved pathology undertaking - undertaking allows inspection without notice - meaning of "reasonable time" - applicant did not breach undertaking by refusing entry - insufficient clarity for constructive refusal prior to inspection and following Tribunal's refusal to make directions.
Administrative Appeals Tribunal Act 1975 (Cth) s 33, s 41, s 44
Health Insurance Act 1973 (Cth) s 16A, s 23DB, s 23DF, s 23DL, s 23DN, s 124FC(1)(e)
Medtest Pty Ltd and Minister for Health and Ageing (unreported, Administrative Appeals Tribunal, Justice Downes, President, 30 April 2002)
Shi v Migration Institute of Australia Ltd [2003] FCA 1304
23 December 2003 |
Justice Garry Downes |
Summary |
|
1. G and M Nicholas Pty Ltd (previously Medtest Pty Ltd) now trading as Medtest Pathology Services operates a pathology laboratory whose services attract medicare benefits. To enable it to do so it gave prescribed written undertakings to the Minister for Health and Ageing and gained accreditation for its laboratory. One of the undertakings was to permit inspection of its premises. Medtest declined to agree in advance to an assessment inspection by the National Association of Testing Authorities (NATA) which the Health Insurance Commission proposed pursuant to the undertaking. On the same day the Administrative Appeals Tribunal refused the Commission's application to direct that the inspection should take place. The question before me is whether Medtest breached the undertaking. If it did, Medtest would face the loss of medicare benefits for its services for a period of time. I have decided that Medtest did not breach its undertaking.
2. In terms, the undertaking is to permit entry, not to agree to inspection in advance. There may be occasions when a refusal to permit inspection in advance is so clear that the refusal will amount to a breach of the undertaking without an actual refusal of entry. However, to have such a constructive refusal both the notice and the advance refusal will need to be very clear. The necessary clarity is not present in this case. The Commission having decided to ask this Tribunal to direct the inspection and having failed in that application I do not think that subsequently asking Medtest whether inspectors authorised under the undertaking would be admitted the following day and recording a negative response was sufficient to create a constructive refusal. I am also satisfied that because the purpose of the inspection was the making of an assessment for the purpose of deciding whether the laboratory should be given fresh accreditation the inspection was outside the undertaking. An assessment inspection for the purpose of determining whether accreditation should be granted involves more than is required by the undertaking.
Background
3. The Health Insurance Act 1973 regulates the circumstances in which Commonwealth benefits will be paid for the provision of pathology services. The Act provides for approved pathology authorities (s 23DF) and accredited pathology laboratories (s 23DN). To qualify for medicare benefit, pathology services must be provided in accordance with s 16A of the Act. One qualifying method is for the services to be rendered by or on behalf of an approved pathology practitioner in an accredited pathology laboratory the proprietor of which is an approved pathology authority. Approved pathology authorities must give an undertaking which is accepted by the Minister in accordance with an approved form (s 23DF). Accredited pathology laboratories must be approved by the Minister (s 23DN). In practice, pursuant to a memorandum of understanding between the Commonwealth and the National Association of Testing Authorities (NATA), accreditation is dependant upon approval by NATA.
4. Medtest is an approved pathology laboratory. It gave the required undertaking. Medtest is the proprietor of an accredited pathology laboratory. It was first accredited on 1 August 1987. However, in late 2001 NATA revoked its own accreditation of the Medtest laboratory and on 14 March 2002 a delegate of the Minister revoked its approval of the premises as an accredited pathology laboratory. On 15 March 2002 Medtest applied to this Tribunal for review of the decision of the Minister's delegate. The Minister for Health and Aging was the respondent. On the same day the Tribunal granted a stay of the revocation pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975.
5. Had the accreditation of the laboratory not been cancelled it was due to expire, in any event, on 30 April 2002. There is a question whether a stay under s 41 of the Act will operate after the term of a licence or permit has expired (see Medtest Pty Ltd and Minister for Health and Ageing (unreported, Administrative Appeals Tribunal, 30 April 2002) and Shi v Migration Institute of Australia Ltd [2003] FCA 1304).
6. On 4 April 2002 Medtest applied to NATA for fresh accreditation. If the application was successful and accreditation as a pathology laboratory was restored there may have been no need for the application before the Tribunal to proceed. However, the delegate of the Minister who would ultimately determine the status of Medtest had indicated that he would not extend the accreditation past 30 April unless he had a recent favourable NATA assessment report. As it happened, the Tribunal ultimately granted a stay which the parties accepted as extending the accreditation after 30 April. However, in early April, time was of the essence.
The Proposed Assessment Inspection
7. It is in these circumstances that arrangements for an assessment for accreditation of the laboratory by a team from NATA began to be put in place. The parties corresponded as to a suitable date. One date considered was 18 April 2002. By 12 April 2002 the Commission on behalf of the Minister and his delegate, by their solicitors (PHILLIPS FOX), had proposed 18 April and asked the solicitors for Medtest (GADENS) to "inform us in writing before 5pm on Monday 15 April 2002 ... whether your client will consent to assessment by NATA on 18 April 2002".. On that day GADENS said that the day was not suitable and suggested 24 April. Thereafter there was a flurry of correspondence between the two solicitors and solicitors for NATA.
8. On 17 April PHILLIPS FOX arranged for the matter before the Tribunal to be listed for directions "to deal with issues...in relation to the proposed NATA inspection ... on Thursday 18 April 2002".. (PHILLIPS FOX letter of 17 April 2002). A directions hearing was held before Deputy President Handley. Application was made by the Commission for a direction, pursuant to s 33 of the Administrative Appeals Tribunal Act, that Medtest permit the assessment proposed for 18 April to take place. Detailed directions for the proposed assessment inspection were put forward. Deputy President Handley refused the application on the ground that Medtest's attitude was "not unreasonable".
9. After Deputy President Handley had refused to order the inspection the Commission sought to take matters into its own hands and require the inspection by the exercise of powers available to it. The power it sought to invoke was unrelated to the assessment for accreditation but there is no doubt that the purpose was to facilitate that proposed assessment. It is also true that the possible use of the power had already been foreshadowed. These proceedings arise out of an alleged demand upon Medtest, pursuant to this power, to permit inspection. It was wrong for this to be done, particularly by an agency of the Commonwealth. One of the purposes for which the Administrative Appeals Tribunal was established was to improve the quality of Government decision-making. This conduct, even if it was lawful, is an example of bad decision-making. However, before I go further, I need to explain the basis for the Commission's alternative course of action.
10. The undertaking given by Medtest as a condition of its becoming an approved pathology laboratory contained the following:
"PART 9 - INSPECTION OF PREMISES
13) The authority undertakes that it will, at any reasonable time, permit a person who -
a) is authorised by the Chief Commonwealth Medical Officer to enter and inspect a laboratory of the authority; and
b) produces evidence of being so authorised to the authority to
i) enter and inspect the laboratory;
ii) inspect any equipment used in relation to the rendering of services in the laboratory;
iii) inspect any process in the rendering of services in the laboratory;
iv) inspect documents and other records related to staffing, supervision and the rendering of services in the laboratory; or
v) make and retain copies of, or take and retain extracts from, any such documents or records with proper regard for individual patient confidentiality.
14) The authority undertakes that it will provide an authorised person referred to in clause 13 with all reasonable facilities and assistance for the effective exercise of the powers referred to in clause 13."
The Events of 17 April 2002
11. On the morning of 17 April the Chief Commonwealth Medical Officer signed an authority under Part 9. It specified an inspection team comprised of the eight experts who were to inspect on behalf of NATA. It authorised "each of the inspection team to enter and inspect Medtest's laboratory". The issue of the authority was requested from the Chief Medical Officer by an officer of the Commission in a letter dated 16 April. It is clear from the letter that the purpose of the request was to ensure that the NATA assessment would take place on 18 April notwithstanding the opposition of Medtest.
12. The evidence before me of Paul FENTON-MENZIES, General Counsel within the Commission, establishes that a decision had been taken in advance of the hearing before Deputy President Handley to use the inspection powers given by the undertaking if the application was unsuccessful. Deputy President Handley was not told this. I have no transcript of the hearing, which was by telephone, but I do have the notes of submissions prepared by Neil WILLIAMS SC, who represented the Commission. I was informed that they were read almost verbatim. They do refer to the undertaking, but no direct statement of the Commission's intention is made. The relevant part is as follows:
"The orders that we seek are twofold:
First, the leave of the tribunal to exercise a right of access which the applicant itself has conferred upon NATA in undertakings given by it to the Commonwealth, and in a renewal application made on 21 February 2001.
The exercise of that power is a matter for which we do not strictly need the tribunal's leave.
It has been held in successive Federal Court decisions that it is not a contempt of this tribunal for and [sic] administrative agency to exercise compulsory powers while proceedings in the tribunal on foot.
Nevertheless, as a model litigant, the respondent is reluctant to proceed with an inspection of the premises in the exercise of those powers without raising the matter before the tribunal and seeking the tribunal's leave.
The second order, which may or may not be a necessary one, seeks a direction, not an order, from the tribunal that the applicant permit access for the purposes of the Inspection."
13. I also have some notes taken at the hearing. They were taken by Clinton McKENZIE, a lawyer employed by the Commission. The extract below appears to begin by recording some reasons for decision given by Deputy President Handley:
"[Handley -] "...It seems to me that Medtest's application did arrive a bit late in the piece.
It seems to me that the notice of the NATA assessment is a bit late - maybe because of the former.
But it is therefore not unreasonable to try to find a suitable time.
Not unreasonable for Medtest to take issue about Frances Handley [sic Hanly] from a competing laboratory.
Not unreasonable to ask for another date so critical people can be there.
It would be sensible that an extension might be granted for an inspection to be prepared and for report to be prepared.
I have not looked at the authorities referred to on whether I have the power but even if I have I decline to make the direction.
It would seem sensible for an extension to be granted to allow further time - this is off the cuff and a common sense view."
Neil Wiliams - note that any decision on whether there would be an extension would be in accordance with the Principles and would take into account NATA position.
Dwyer - I am instructed that Medtest will be doing everything they can to achieve a consensus about inspection.
NW - likewise.
NW - note that the timetable will need to take into account NATA assessment and report.
Handley - of course."
Neither the notes of what was said nor the notes of submissions suggest that the Commission was proposing to go ahead with the assessment in any event. Indeed, the first order referred to in Mr WILLIAMS' notes seems to me to propose that the Commission was proceeding on the basis that it should not act under the undertaking without obtaining leave.
14. The possibility of inspection pursuant to the undertaking appears first to have been referred to in a letter dated 13 February 2002 from the Commission to the solicitors then acting for Medtest (Lawrence F TANNA). However, such an inspection was there treated as the alternative to a NATA inspection. In a letter dated 5 April from PHILLIPS FOX to GADENS these alternatives were again referred to.
15. The possibility of the NATA "assessment visit" being undertaken pursuant to the undertaking is first referred to in a letter from PHILLIPS FOX to GADENS dated 16 April. The letter asks: "[I]f the Chief Medical Officer authorises the assessment visit on Thursday 18 April would your client permit that assessment visit to occur?" It seeks a response "so that we can inform the Tribunal of your position and take your response into account when considering what application to make to the Tribunal tomorrow." By e-mail the following morning PHILLIPS FOX sought an "urgent reply to our inquiry about whether your client will decline to permit an inspection if it is carried out under the authority of the Chief Medical Officer in accordance with the undertaking given by your client." These two communications seem to be asking a question rather than making a demand.
16. After the directions hearing Mr FENTON-MENZIES spoke to Ms BLACKER of GADENS. Both Mr FENTON-MENZIES and Ms BLACKER have given accounts of this conversation. There is also an account by Kathryn JOHNSON, a lawyer employed by the Commission. None of the witnesses were cross-examined on their accounts. I am prepared to proceed on the basis that Mr FENTON-MENZIES' account is the most accurate. The following relevant extracts are taken from that account:
"6. I said to Ms Blacker words to the effect that "as previously advised an assessment team authorised by the Chief Commonwealth Medical Officer, consisting of NATA assessors, is proposing to inspect Medtest's premises [at Unit 1, 214 The Boulevarde, Fairfield Heights, NSW] at 9:00 am on Thursday, 18 April 2002 pursuant to Medtest's Undertaking [under Part 9 - Inspection of Premises, Clause 13 of Medtest's Approved Pathology Authority Undertaking]". I said words to the effect that "HIC continues to press for the assessment tomorrow despite the comments of the Administrative Appeals Tribunal earlier today".
7. I also said to Ms Blacker words to the effect that "tomorrow's proposed assessment is not a NATA [National Association of Testing Authorities, Australia] assessment for the purposes of NATA accreditation".
8. Ms Blacker said to me words to the effect that Medtest "refuses to allow the proposed assessment team to enter Medtest's premises for the purposes of the proposed assessment".
...
11. I responded to Ms Blacker's comments by saying words to the effect that "the proposed inspection would assist the decision-making process of the delegate." I was referring to the delegate of the Minister for Health and Ageing who was proposing to make a decision on or before 30 April 2002 in relation to whether Medtest's accredited pathology laboratory approval (APL approval) should be extended beyond 30 April 2002, or whether a fresh APL approval should be granted prior to 30 April 2002 under section 23DN of the Health Insurance Act 1973. During the conversation:
* I referred to Ms Blacker in a general way to a facsimile letter dated 17 April 2002 from Mr Lou Andreatta of the HIC (a delegate of the Minister for Health and Ageing) which stated that "I would be greatly assisted by a report from NATA based upon a fresh assessment. Indeed ... in the absence of such a fresh NATA report favourable to your client I would presently not be inclined to approve your client's premises from 1May". That letter also refers to a letter dated 8 April 2002, where the same delegate stated he "would not be inclined to grant any new APL approval in relation to the premises, unless NATA had issued a report, based on a recent assessment, that assesses the premises as suitable to operate as an APL".. Ms Blacker appeared to be familiar with the content of Mr Andreatta's letter.
* I said to Ms Blacker words to the effect that "NATA tells me that if the proposed assessment does not take place tomorrow, NATA can't provide a fresh and recent report to the delegate prior to 30 April 2002".
...
13. Towards the end of the conversation, I said to Ms Blacker words to the effect that "this has been a helpful conversation, but we should not debate the point any longer, as clearly we take a different view of whether the proposed assessment is at a reasonable time for the purposes of the Undertaking".
14. I said to Ms Blacker words to the effect that "without intending to be an alarmist, Medtest's decision not to allow the proposed assessment to take place may have consequences for Medtest, because HIC takes the view that Medtest's refusal to permit the proposed assessment team to enter Medtest's premises for the purposes of an assessment under the Undertaking means that Medtest may well be acting inconsistently with its Undertaking".. I said words to the effect that "if Medtest acts inconsistently with its Undertaking, statutory consequences may well flow".
15. Ms Blacker said words to the effect that she confirmed that Medtest "will not allow the assessment team to enter Medtest's premises on the proposed assessment date as HIC had given insufficient notice of the proposed assessment date"."
17. Mr FENTON-MENZIES' assertion that the proposed assessment was not a NATA assessment for the purposes of NATA accreditation does not sit well with what had gone before. Nor does it sit well with the statements in the letter from Mr ANDREATTA of the same day, which is referred to in the above account, that "NATA has arranged, on an urgent basis, to assess your client's premises tomorrow, 18 April" and that "your client has refused to allow NATA to assess its premises tomorrow."
18. After this conversation Mr FENTON-MENZIES cancelled the assessment. At about 7 o'clock in the evening he sent Ms BLACKER the draft of a letter he proposed to send to GADENS and requested "any comments." The letter included the following:
"I confirm that:
* a NATA assessment team was proposing to inspect your client's premises tomorrow morning at 9.00 am, pursuant to Part 9 of your client's APA undertaking dated 18 July 2000 (the undertaking);
* each member of the assessment team has been authorised by the Chief Medical Officer for the purposes of clause 13 of the undertaking;
* your client will not permit any of the proposed NATA assessment team to enter its premises tomorrow"..
The letter was sent on 18 April.
History
19. On 15 May 2002 the Minister gave Medtest a notice under s 23DL of the Health Act alleging that she had reasonable grounds for believing that it had committed a breach of its undertaking. GADENS made submissions that there had been no breach. Having considered those submissions the Minister adhered to her view and, as she was then required to do, referred the matter to a Chairperson of a Medicare Participation Committee in this case Mr D I CASSIDY QC. Mr CASSIDY constituted a committee consisting of Doctors Eva RAIK, Lena SMITH and himself. After a hearing the Committee found that the alleged breach of undertaking had been established, revoked the undertaking under s 124FC(1)(e)(iv) of the Health Act and directed pursuant to s 124FC(1)(e)(v) that no fresh undertaking be accepted for three months. This has the effect that Medtest would not be entitled to provide services that attract medicare benefits for three months. Medtest applied to this Tribunal for review. The implementation of the determination of the Committee has been stayed pending the outcome here.
Reasonable Time
20. The meaning and effect of the undertaking is at the heart of this matter. One submission put to me on behalf of Medtest was that the phrase "at any reasonable time" in the undertaking meant that reasonable notice must be given. That is not right. The phrase means what it says. An inspection at 3 o'clock in the morning might not be at a reasonable time except for a laboratory that operated 24 hours a day. However, the undertaking does not require reasonable, or indeed any, notice. Inspections without notice are among the very things which are encompassed by the undertaking. Where the Chief Medical Officer wants to see if a laboratory is performing satisfactorily in its ordinary day to day operations an unannounced visit may be most appropriate. This is no doubt why the undertaking is couched in terms of permitting entry and does not contemplate prior arrangement or notice. The Chief Medical Officer was entitled in April 2002 and is entitled now to confer authority to inspect Medtest's premises without any notice or any reason being given. However, that does not resolve the question of whether there has been a breach of the undertaking in the present case.
Did the Notice give rise to breach?
21. The fact that no notice is required is important for the present case because it shows that the undertaking focuses on the act of permitting a person with authority to enter. No person with authority has been refused permission to enter in the present case. No person attended at the entrance and asked to be permitted to enter. In dealing with this matter the Committee said: "Part 9 of the undertaking does not on its face require an actual attendance. Clause 13(b) calls for the production of evidence but that was done in the course of the conversation and the earlier correspondence." The problem with this statement is that the undertaking is to permit entry, which does require attendance and to permit it at a particular time, namely at some actual time that is a reasonable time. Even if cl. 13(b) can be satisfied by the production of authority in advance it does not follow that a refusal to permit entry can occur then. Of course, if the Chief Medical Officer does not seek the element of surprise in an inspection, notice will no doubt be given, as a matter of convenience. But the fact that there may be a practical reason for giving notice cannot change the nature of the undertaking.
22. There may be some room for a finding in a particular case that there has been a constructive refusal of entry just as the law of contract recognises anticipatory breach. But such a refusal would need to be very clear. The problem with the present case is that there is not a sufficient degree of clarity. Right to the very end the discussions took place in terms of dialogue and questions. On 16 April the question was: If the Chief Medical Officer authorises it will you permit the visit to occur? The highpoint on the following day was Ms BLACKER'S confirmation that Medtest would not allow the assessment team to enter on the proposed assessment date. I accept that Mr FENTON-MENZIES said that if Medtest acted inconsistently with its undertaking statutory consequences might flow. However, I also note that Mr FENTON-MENZIES had just referred to the differing views that he and Ms BLACKER took. I find that this conversation could not reasonably be understood as a notice of such formality as to give rise to a breach of the undertaking either constructive, or, if my interpretation of Part 9 is wrong, actual.
23. In coming to this conclusion I bear in mind that it took place immediately after the Commission had failed in an application to this Tribunal to order the inspection under s 33 of the Act. Self help after failed litigation is fortunately a rare thing. A reasonable person in the position of Ms BLACKER, conscious that the application to the Tribunal to direct an inspection had failed, would not construe the conversation with Mr FENTON-MENZIES as a formal demand under the undertaking notwithstanding the references to statutory consequences. The draft letter that followed did not alter this position.
24. In the conversation after the directions hearing Mr FENTON-MENZIES said that the proposed assessment would not be a NATA assessment for the purposes of NATA accreditation. I find that he probably said this to avoid a concern he had that such an assessment might not be able to be compelled under the undertaking. In my opinion Mr FENTON-MENZIES was playing with words. He was attempting to allow the form to rule the substance. It was common ground before me that NATA accreditation was the basis for accreditation as a laboratory. Counsel for the Commission said that NATA had "canonical status as the independent accreditation authority".. Perhaps it is technically acting differently when it is assessing for its own accreditation than when it is advising the Minister or her delegate. However, that is not how I understand the evidence. What is important is that nothing changed on 18 April. It was always to be an assessment by NATA whether it was technically described as an assessment for NATA's own accreditation, from which would follow accreditation by the Minister's delegate, or whether the assessment was a special assessment for the Minister's delegate alone.
25. Gary NICHOLAS, a director of Medtest, and its laboratory manager, gave evidence before me. He said that if the persons authorised by the Chief Medical Officer had arrived on 18 April and asked to be admitted he would have permitted them to enter. I accept this evidence on which he was cross-examined. That reinforces my conclusion. It is one thing to say in advance you will not agree to someone entering premises. It is quite another thing to actually refuse permission to someone on the doorstep.
Was the proposed assessment inspection within the undertaking?
26. However one looks at what was proposed for 18 April it does not seem to me to have been within the undertaking. First, it was a voluntary assessment. Medtest had lost its accreditation except to the extent that this Tribunal had intervened under s 41 of the Act. Unless the Tribunal continued to intervene Medtest was not accredited. If it did not want to permit a NATA inspection that was its right. The consequence may have been the loss of its ability to provide services with medicare benefits; but that was its problem, not the Commission's. Secondly, what was proposed was an assessment not a mere inspection. Eight distinguished medical experts were to attend.. They would have wanted to discuss practices and procedures in some detail. I know that the undertaking requires the provision of reasonable facilities and assistance but that is all it says and it is all in aid of inspection. Had the Commission proposed an inspection by one local expert it would not have needed to know in advance whether entry would be permitted. That became necessary because the assessment was by eight distinguished experts, some of whom had to travel from interstate. For this further independent reason I find that there was no breach of the undertaking.
Other matters
27. During the hearing there was discussion of whether the undertaking only authorised one person to inspect at a time or whether each person needed to have a separate authority. However, I need not deal with these questions.
28. No argument was put to me that the Commission had any reason to believe at the time of the proposed inspection that there might be some serious non-compliance by Medtest. I have no reason to believe that there was. Medtest is now fully accredited. However, if the Commission had had such suspicions I note that nothing in these reasons suggests that it could not have acted under the undertaking. The Chief Medical Officer could have authorised a suitable expert to attend and inspect, outside the NATA assessment process, at any time, without warning.
29. Had I found that there was a breach of the undertaking I would have been required to address some difficult issues that were addressed by the Committee as to what consequences flowed and as to whether I had any discretion with respect to them. The Commission argued that in the event of breach the legislation required the undertaking to be revoked and not to be reconsidered for twelve months. In the light of my findings it is not appropriate for me to address these issues. Any appeal from me is confined to a question of law (s 44 of the Act). If an appeal is allowed the matter will need to come back to the Tribunal for further hearing. It is upon findings of fact then made that any discussion of what consequences would flow from any breach should be based.
Decision
30. My decision is that the determination of the Medicare Participation Review Committee must be set aside and in substitution I decide that Medtest did not breach its undertaking given under s 23DB of the Health Insurance Act 1973 as alleged.
I certify that the thirty (30) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President
Signed: .......................................................................................
Associate
Dates of Hearing 13 and 14 November 2003
Date of Decision 23 December 2003
Counsel for the Applicant P Dwyer
Solicitors for the Applicant Gadens Lawyers
Counsel for the Respondent The respondent did not appear
Counsel for the Joined Party F Kunc
Solicitors for the Joined Party Sparke Helmore
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/1349.html